Atrocious failures blight our justice system

[What follows is excerpted from an editorial in today’s edition of The
Observer. The  “atrocious failures” referred to in it apply equally in the
Scottish prosecution system and, as the Megrahi case demonstrates
only too clearly, extend beyond the police to the prosecution service
itself.]

Atrocious failures blight our justice system. Should disclosure decisions be taken

away from the police?

The right to a fair trial is a linchpin of the rule of law and a free and democratic

society. So it is right that the collapse of two rape prosecutions in recent days,
both due to police failure to disclose relevant material to the defence, has cast
a fresh spotlight on whether that right is under jeopardy.

The obligation of police and prosecutors to disclose unused material that might

support the defence case is critical to ensuring a fair trial. Indeed, a failure to
disclose relevant information to the defence team is one of the most common
causes of miscarriages of justice. In the cases of Liam Allen and Isaac Itiary, both
accused of rape, the Met police failed to hand over relevant text messages to
defence lawyers in a timely fashion. When this finally happened, both cases were
dropped, but not before Itiary had spent four months in jail awaiting trial and Allan
two years on bail. The attorney general rightly labelled this an “appalling failure” of
the criminal justice system.

There are competing narratives about what lies behind this. Some hold up these

cases as a sign that the pendulum has now swung the other way in a police force
once notorious for its failures to take rape allegations seriously. (...)

But it is irresponsible to imply police failures in disclosure are a problem specific to

rape prosecutions. In July, a joint report on disclosure by the police and
prosecution service inspectorates raised concerns about disclosure practices within
the police and CPS across all types of cases. (...)

Others have argued this is about austerity: police and CPS budgets have been cut

significantly since 2010 and the number of police officers has declined by more
than 20,000 even as recorded crime has increased. Not only that, the government
has instituted massive cuts to legal aid.

There is no question that our criminal justice system is becoming more and more

stretched. The result is that access to justice is impeded for growing numbers of
people.

But the story does not start and end with government cuts. Rules around
disclosure were first introduced in the 1990s after a series of high-profile

miscarriages of justice, such as the wrongful convictions of the Birmingham Six.
Twenty years later, the amount of data involved in criminal cases has ballooned,
thanks to the proliferation of computers, tablets and mobile phones.

This makes the investigation and prosecution of criminal offences far more complex

and time-consuming than ever, while the massive volume of data confronting the
police in all sorts of cases makes meeting their obligations on disclosure
increasingly difficult. The implications of this accelerating burden on the criminal
justice system have never been properly debated; rather, they have been shoved
into the “too difficult” box.

Police cultures also impede disclosure. The role of the police is to act as an

impartial investigator; it is the CPS whose job it is to prosecute a case. But the
nature of police work means detectives and officers have to develop theories about
their cases. Some officers may wilfully conceal evidence that undermines the case
they have constructed. But basic human psychology – none of us much likes to be
proved wrong – means that many more may be blinkered by unconscious bias
that draws them away from evidence that undermines their case theory. This has
led some to question whether it is right to leave disclosure decisions to the police.
At the very least, the police need proper training, but it has been found to be
inadequate across the majority of police forces.

The police wield immense power over our lives. From Hillsborough to Stephen

Lawrence, the Birmingham Six to child sex abuse in Rotherham: the past tells us
that when they are not adequately held accountable for that power, the result can
be deep injustices of the very worst kind.

Accountability has increased significantly in the past 20 years, with the

establishment of the Independent Police Complaints Commission and independent
inspectorate. But police failings on disclosure have been swept under the carpet
for too long, even as they are further aggravated by austerity and the sheer
volume of data in the modern world. If we continue to ignore them, we will pay
the ultimate price: the guarantee of a fair trial.

Classified Lockerbie bombing files released after 25 years

[This is the headline over a report published this morning on the
STV News website. It reads in part:]

Newly-declassified files documenting the UK Government's efforts to bring the

Lockerbie bomber to justice in Scotland have been released. (...)

Libyan citizen Abdelbaset al-Megrahi was convicted of carrying out the attack

in 2001 after a series of failed attempts to extradite him.

The newly-released files reveal reveal Douglas Hurd, foreign secretary to Prime

Minister John Major, believed sanctions intended to force Libya into handing over
Megrahi were "rattling" its leaders as early as 1992.

He said it would be a "big prize" if Muammar Gaddafi released him to face

a Scottish court, but warned the UK Government should refuse to negotiate.

He cautioned against getting drawn into a "web of negotiation" and in a later

meeting acknowledged the chances of Gaddafi leader agreeing were "slight".

Hurd admitted that if the Libyan government remained defiant in the face of

sanctions "the prospects for tightening them would not be good".

Sanctions would eventually succeed in securing Megrahi's extradition, although

it would be another seven years until that happened. Gaddafi handed over
Megrahi and his co-accused Lamin Khalifah Fhimah in 1999.

They were put on trial at a specially-convened Scottish court in the Netherlands

in 2001.

Meghrahi was convicted of murder and given a life sentence, while Mr Fhimah

was acquitted.

The conviction remains controversial, however.

Jim Swire, the father of a Lockerbie victim, has campaigned to clear Megrahi's

name. He met with the foreign secretary in 1992 and is described in the papers
as a "sensible man with whom it is important to keep in touch".

Earlier this year Megrahi's family launched a third appeal against his conviction

with Mr Swire's backing.

Megrahi's supporters believe he was the victim of a miscarriage of justice and

claimed the bombing was ordered by Iran in retaliation for the downing of an
Iranian airliner in 1988, which killed 290 people.

They believe the Lockerbie bombing was carried out by a Syrian-Palestinian group

who escaped justice.

Megrahi served the majority of his sentence in Scotland but was controversially

released in August 2009 after he was diagnosed with terminal prostate cancer.
Megrahi returned to Libya, where he died in May 2012.

[RB: The Cabinet Office has blocked the release of one Lockerbie file

that would otherwise have been disclosed.]

Release of government Lockerbie file blocked

[What follows is excerpted from a report published in today’s edition of
the Daily Record:]

Scores of historic government files have been published – but dozens more dealing

with sensitive issues are being kept secret.

Records held back from the traditional release of files to the media deal with topics
including Europe, devolution and the Lockerbie bombing. (...)

In all, around 190 of the 490 files scheduled for release from the Prime Minister’s
office have been retained by the Government.

Also held back were records which referred to devolution and one marked
“Lockerbie bombing: Pan Am air crash part 3a”. (...)

A Cabinet Office spokesman denied files were being deliberately withheld to prevent
media scrutiny.

He said: “We have to ensure all files are properly reviewed and prepared before
they are transferred, so they do not harm national security or our relations with
other countries or disclose sensitive personal data of living individuals.”

Lockerbie relatives again call for independent inquiry

[What follows is excerpted from a report published in today’s edition of
The Herald:]

Relatives of Lockerbie bombing victims have renewed a call for a full independent inquiry into the downing of Pan Am Flight 103 following the 29th anniversary of the atrocity which killed 270 people.

John Mosey and Jim Swire, who both lost daughters when the aeroplane was blown out of the sky on December 21, 1988, believe Abdelbaset al-Megrahi, who was convicted of the bombing in 2001, was innocent. Swire’s campaign group, Justice for Megrahi (JfM), lodged a legal appeal bid in July. (...)

On [4] July 2017, the Scottish Criminal Cases Review Commission confirmed it had received a third application to review the conviction.

Meanwhile, a three-year investigation by police into nine allegations of criminality by Lockerbie investigators, known as Operation Sandwood, is ongoing. It is expected to conclude in February.

Jim Swire, 81, whose 23-year-old daughter Flora was on the flight, said it’s “essential” there is also “a full public inquiry which has to go beyond confines of Scotland”.

Mosey, 77, who lost his 19-year-old daughter, Helga, when the plane came down, said: “Maybe, just maybe, one or both of the two current direct approaches via Police Scotland and the Scottish Criminal Cases Review Commission will bring us one step nearer to getting a full, independent inquiry and some honest answers to the big questions that trouble us."

“This would, at least, restore some of our confidence in our legal systems and in those who govern us and give us back a little of our national pride.”

Detective Superintendent Stuart Johnstone, of Police Scotland, said Operation Sandwood was at an advanced stage and that the final report would be closely scrutined by an independent QC before being submitted to the Crown Office.

A Scottish Government spokesperson said: “We will examine the findings of Police Scotland’s Operation Sandwood report before we consider any future steps.”

Investigation into Lockerbie prosecutors nearing completion

[This is the headline over a report by Marcello Mega in today’s edition
of The Times. It reads as follows:]

Retired detectives, former prosecutors who now serve as judges and expert

witnesses in the Lockerbie case will learn early in the new year if they will be
charged with criminal conduct.

Police Scotland said yesterday that Operation Sandwood, their investigation

into claims of criminality by investigators and prosecutors, was at the reporting
stage and was well advanced.

The evidence uncovered will set the ball rolling on what could be the final act

in the drama surrounding the bombing of Pan Am Flight 103, which claimed
the lives of 270 people on December 21, 1988.

As the police team conducted their inquiries investigators working for the family

of Abdul Baset Ali al-Megrahi, the man convicted of the bombing who died in 2012,
made a breakthrough.

Scientific tests carried out on the most crucial piece of evidence in the case,

a fragment of circuit board from a timing device that enabled prosecutors to link
Libya to the bombing, suggested strongly that it was a fake.

This means that the family will continue to push for the Scottish Criminal Cases

Review Commission to refer the case back to the court of appeal to try to clear
al-Megrahi’s name.

The Sandwood team, led by Deputy Chief Constable Iain Livingstone, is taking

advice from an independent QC.

Police Scotland took the view when the allegations were made by the Justice

for Megrahi (JfM) pressure group that it could not be led by the Crown Office as
many of the claims related to the office’s conduct.

The final report, with recommendations about any potential prosecutions, will be

with the Lord Advocate James Wolffe, QC, by February.

The Sandwood team has faced a difficult and sensitive task because it has had

to investigate the conduct of people at the heart of the Scottish justice system.
It would not be unprecedented for former police officers to face charges, and
the forensic experts under scrutiny have already been discredited through their
conduct in other trials, notably a number of IRA cases where verdicts were
reversed on appeals.

However, it would send shockwaves through the system if any of the prosecutors i

n the case, two now sitting as High Court judges and one as a sheriff, faced
questions about their integrity.

Iain McKie, a former police superintendent and now a key figure in JfM, said:

“We have been impressed by Police Scotland and the way in which Iain Livingstone
and others have dealt with this matter and kept us informed.

“If they have established there was criminality, they won’t shy away from it.

I fully believe that. But the problem might be that ultimately it would still be for
the Crown to make a final decision after considering the police report.”

It is likely that if any charges do result, the forensic experts in the case would be

the most likely targets, and the new evidence uncovered by the al-Megrahi family’s
legal team would support that strongly. One of the experts testified at the trial
that the timer fragment was “similar in every respect” to a set of timers supplied
to Libya.

However, it has emerged that while the timers supplied to Libya contained

a tin/lead alloy, the fragment came from a timer made of pure tin. It also yielded
absolutely no explosives residue when tested, so had never been at the seat of
an explosion.

Gareth Peirce, the lawyer who helped clear the Birmingham Six and the

Guildford Four, said: “[They were] the same forensic scientists who produced
the wrongful conviction of Giuseppe Conlon, the Maguire family and of
Danny McNamee, and had been stood down for the role they played.

“Yet here they were. Without them, there wouldn’t have been a prosecution, far

less a conviction in Lockerbie.”

Al-Megrahi’s elder son, Khaled, said: “We are sure that our cause is right and

we will prevail no matter how long. We know one day the truth will come out.
We will never stop our work to make sure of it.”

Megrahi petition again on Scottish Parliament Justice Committee agenda

Justice for Megrahi’s petition (PE1370) calling on the Scottish Government to set up an independent inquiry into the conviction of Abdelbaset Megrahi features on the agenda for the meeting of the Scottish Parliament’s Justice Committee to be held on Tuesday 19 December 2017 at 10.00 in Holyrood Committee Room 2. The agenda and accompanying papers can be accessed here. The two documents submitted by Justice for Megrahi for this meeting appear among the papers as Annexe A and Annexe B.

Annexe A reads as follows:

Introduction

As you are aware the above petition has been kept open by the Justice Committee

since 8 November 2011 to allow various developments related to the Lockerbie

case to be monitored by the Committee.

The Committee last considered the petition at its meeting on 5 September 2017,

when it agreed to keep the petition open pending the completion of Operation

Sandwood.

In this submission JFM wishes to bring the committee’s attention to matters which

have developed since the petition was last considered.

Developments

Operation Sandwood: JfM has continued to co-operate fully with Police Scotland

and had a further process meeting with them in October. Another meeting is

planned for 15th December.

Our understanding is that in respect of Operation Sandwood, the main enquiry

is completed and essential forensic reports received. It is anticipated the final

report will shortly be passed to Police Scotland’s independent QC as a preliminary

to its being submitted to Crown Office.

We continue to have complete faith in the police to deliver a thorough and

objective report and in particular value the close liaison they have encouraged

as their investigation proceeded.

Crown Office Consideration of Police Report: As previous correspondence with the

Committee shows we continue to have concerns about the objectivity and

independence of Crown Office personnel who will consider the Operation

Sandwood report.

While acknowledging the appointment of James Wolffe QC as Lord Advocate,

we would ask the committee to note that when the Police report is received by

Crown Office, it must be subject to objective, unbiased and independent

consideration.

It remains essential that the ongoing political scrutiny of the process by the

Justice Committee continues and does not stop when the report goes to Crown

Office. It is in the public interest that political monitoring continues while Crown

Office considers the Operation Sandwood report and makes its final conclusions

public.

Scottish Criminal Cases Review Commission (SCCRC): We understand that

an application for another appeal has been made to the SCCRC by Mr Megrahi’s

family.  We are not aware of the details of their submission but believe that

the findings of the Operation Sandwood report will be critical to the appeal

consideration.

Conclusion

We believe that the political oversight being provided by the Justice Committee

into this major criminal investigation is very much in the public interest. Having

monitored the progress of the police investigations for nearly 4 years it is essential

that Crown Office, an organisation that has shown provable bias in the past, is

held to political account to ensure the openness and objectivity of its consideration

and the probity of its eventual decision.

Given the central importance of the findings of Operation Sandwood to any future

prosecutions, enquiries or appeals, we would respectfully urge the Committee

to allow Petition PE1370 to remain on the table.

Frank Duggan "not familiar with certain aspects of Lockerbie"

[What follows is excerpted from an obituary of Frank Duggan published in today’s edition of The Herald:]

Frank Duggan, who has died of cancer aged 79, was a combative and often controversial lawyer and campaigner for American victims of the 1998 PanAm/Lockerbie disaster four days before Christmas 1988. He headed the organisation Victims of Pan Am 103 Inc, representing families in the US who lost relatives in the terrorist bombing in which 270 people died.

Whether he represented all the families of the 190 American victims was never quite clear - he once told George Galloway MP he had "never really counted them" - but he was instrumental in the legal action that won $2.7 billion from the Libyan government for the bereaved families, minus a stunning 30 percent in American lawyers' fees. He reportedly worked for the families initially for no pay but is thought to have shared in those fees.

Mr Duggan was incensed when Kenny MacAskill, Scotland's justice minister at the time, decided to release the convicted bomber, Abdelbaset al-Megrahi, on humanitarian grounds in 2009. Describing the decision as obscene, Mr Duggan was vociferous in insisting the then Libyan leader Muammar al-Gaddafi had ordered the PanAm bombing. This brought him into often bitter conflict with many of the Scottish and other UK victims' families, notably the most-outspoken UK relative, the GP Dr Jim Swire, whose 23-year-old daughter Flora perished in the tragedy.

Dr Swire and many other families always believed al-Megrahi's conviction was a miscarriage of justice and that Iran may have been behind the terrorist bombing in retaliation for a less-publicized tragedy. That was when an American Navy guided-missile cruiser, the USS Vincennes, shot down an Iran Air Airbus passenger aircraft over the Persian Gulf on July 3, 1988, killing all 290 passengers and crew - more than the later total of the Lockerbie tragedy. The Americans said they thought the airliner was a fighter plane and the deaths received a fraction of the publicity worldwide that the Lockerbie deaths would receive nearly six months later.

By all accounts, Frank Duggan was a good man, a man who recovered from years of alcoholism and who sincerely fought for the American victims of PanAm 103. But he was perhaps rather naive when it came to the media, as demonstrated in a telling telephone interview with George Galloway MP for talkRADIO in 2009.

In the call, Mr Duggan admits he was not familiar with certain aspects of Lockerbie, notably the evidence of the Maltese witness Tony Gauci, who said he had sold the clothes later found to have been wrapped around the bomb which brought PanAm 103 down. Mr Galloway asked Mr Duggan why the US government had given Mr Gauci a $2million "reward,"to which Mr Duggan replied that there was no proof of such a payment and that he was "not that familiar" with Mr Gauci's evidence.

Mr Duggan then proceeded to call Jim Swire and others of being "all of these cranks." Again, Mr Galloway pulled him up for calling Dr Swire a crank. It was too much for Mr Duggan and in the end he told Mr Galloway: "I don't have time to waste with people like you. I've got to go. Bye bye." And he hung up. (...)

It was George H W Bush who in early 1989, prompted by the Lockerbie tragedy, appointed Mr Duggan to the Presidential Commission on Aviation Security and Terrorism (PCAST) where he became a liaison between the US administration and the American Lockerbie victims.

According to a colleague at PCAST, former FBI agent J Brian Hyland, whose desk was next to Mr Duggan's, the latter had a tendency to sing or hum the patriotic Battle Hymn of the Republic (Mine Eyes have seen the Glory) to keep his colleagues in a positive frame of mind.

Despite the fact that he did not have a relative on the PanAm 103, the families - or at least a majority of them - trusted him and appointed him president of the group they called Victims of PanAm 103 Inc, and he represented them until the day of his death. In return, the families supported Mr Duggan, notably after his daughter was hit by a drunk driver and went into a coma. She eventually awoke but with brain damage.

As family liaison, Mr Duggan lobbied for their interests and listened to them with patience and understanding. After being appointed to Presidcent Bush's PCAST, he continued lobbying for the families as the trail turned to Libya. During this time, he went to work for one of the legal teams representing the families, headed by Allan Gerson, whose 2001 book noted that “for six years Duggan had worked for the families and had earned nothing for it except their trust and gratitude.”

Should the air disaster be marked this year?

[This is the headline over an item published yesterday on the DnG24 website. It reads as follows:]

Dumfries and Galloway Council last week confirmed that they have no plans to mark the anniversary of the 1988 attack, in which 270 people died, including 11 on the ground.

However, Lockerbie Community Council remain unsure on how, and if, the people of Lockerbie want to honour December 21 this year.

And they are urging locals to get in touch and make their wishes known to the community group.

Discussing whether or not to mark the tragic event, councillor Adam Wilson said: “It is important that the anniversary is marked and all those who tragically lost their life 29 years ago are remembered.

“But any anniversary must be respectful of the local people who live with the memories and scars of that tragic night.”

And Colin Dorrance, who has a dual connection to the disaster, says it’s a complex issue. As a teenage police officer Colin was one of the first at the scene on December 21.

But he has also seen that good that can grow from tragedy in the form of the Syracuse Scholarship, which was awarded to his daughter Claire in 2012 and son Andrew earlier this year.

Through his children’s connections to the States he has formed his own bonds with the New York college and the people that keep the scholarship going and keep alive the memory of their students who died that night.

Colin said: “I feel that the subject remains a difficult, complex one for the town to deal with. There are those who still live in the community that were profoundly affected, who perhaps wish not to be reminded – that should be respected.

“Remembrance can be a very personal thing.

“It’s also understandable that the town does not wish to be forever defined by a tragedy.”

He added: “However, as the incident passes further back into history and the town moves forward, I sense that there is also a growing need to be more open and public about what happened and that we should find a way to express that somehow.

“Out of the depths of one of the most horrendous crimes in British history, our town rallied, its services pulled together and there are thousands of accounts of selfess acts of kindness, consideration and support shown – to others, to next of kin, their friends, families, and to visitors from all over the globe – then and in the decades since.

“There is something in all of that to be actively remembered and publicly commemorated. The ongoing links between Syracuse University and Lockerbie Academy exemplify this and we should perhaps explore how to extend those precious bonds wider into the Lockerbie community.”